Federal Judge Boots Snapple Class Action

     MANHATTAN (CN) - Snapple does not owe class damages for advertising "All Natural" ingredients on juices that contained high-fructose corn syrup, a federal judge ruled. U.S. District Judge Denise Cote granted summary judgment because plaintiffs "failed to present reliable evidence that they paid a premium for Snapple's 'All Natural' label."
     Evan Weiner and Timothy McClausland filed the class action on Oct. 10, 2007. They claimed Snapple's label was misleading because high-fructose corn syrup "does not exist in nature." They sought damages for deceptive trade, unjust enrichment and breach of warranty.
     Their first amended complaint stated that to "produce HFCS [high-fructose corn syrup] cornstarch is first treated with a purified enzyme, alpha-amylase, to produce shorter chains of sugars called polysaccharides."
     This process requires use of a bacterium, usually Bacillus.sp, the complaint states.
     A second enzyme, glucoamylase, which is industrially produced with a fungus, is added to produce glucose.
     Then a third enzyme converts the glucose to fructose, which requires two more steps to produce a concentrate, the complaint states.
     In a 2002 op-ed piece for The New York Times, Michael Pollan, author of "The Omnivore's Dilemma," wrote: "It's probably no coincidence that the wholesale switch to corn sweeteners in the 1980s marks the beginning of the epidemic of obesity and Type 2 diabetes in this country. Sweetness became so cheap that soft drink makers, rather than lower their prices, super-sized their serving portions and marketing budgets."
     Snapple started substituting sugar for high-fructose corn syrup in all of its products labeled "All Natural" in 2009, Judge Cote wrote.
     She denied class certification for the plaintiffs in September 2010.
     Snapple sought summary judgment on Sept. 17, 2010, which Judge Cote granted.
     "According to Snapple, because the plaintiffs have not offered evidence showing either the price they paid for Snapple or the prices charged by competitors for comparable beverages, they cannot demonstrate that they paid a premium for the 'All Natural' Snapple product and thus cannot show harm stemming from the allegedly misleading label ...
     "Neither of the plaintiffs has any record of his purchases of Snapple. Their most recent purchases were made in 2005 and 2007, or 3 to 5 years before their deposition testimony was taken. Not surprisingly, they had only vague recollections of the locations, dates, and prices of their purchases of Snapple," the judge wrote.
     The plaintiffs could not determine the prices they paid for the Snapple products, nor could they recall the prices of competing beverages made without corn syrup.
     Cote wrote that it "would be difficult to recall" such information because prices in the "retail market vary widely," but it is necessary for the lawsuit to have merit.
     "While the difficulty that the plaintiffs face in showing injury is great, it is nonetheless their burden to make such a showing, and they have failed to offer sufficient evidence to permit a jury to render an award in their favor," the judge wrote.
     She said that the plaintiffs gave only rough estimates of the prices of their Snapple purchases in their depositions, testifying that the bottles cost "somewhere south of $2" and "$1.50 to $1.75, around there."
     "Snapple is entitled to summary judgment on the ground that the plaintiffs have failed to identify sufficient evidence to permit a jury to find that they suffered any injury."
     Snapple Beverage Corp. was represented by Seth T. Taube with Baker Botts.